Torture, Habeas Corpus and the Constitution

Recently, while watching a video of Judge Andrew Napolitano commenting on revelations that Bush and his administration knew about and authorized “enhanced interrogation techniques” (ie, torture) by the CIA, I started thinking – as usual – about how all this fits in under the Constitution.

First of all, watch the video, it’s pretty interesting stuff:

Whether you agree with the use of torture or “enhanced interrogation techniques” or not (I strongly oppose them), is not the issue. The important point is whether or not our elected officials are following the rules that govern their behavior. It seems to be quite clear, as Napolitano put it, that if Mr Bush violated the law, he should be prosecuted.

I think the Judge makes some solid points here. The United States is supposedly a nation of laws, and those who break that law should be held accountable. And, what’s the “supreme law” of the land? Well, the Constitution, of course!

By denying those people held at places like Guantanamo and elsewhere the privilege of habeas corpus (to challenge their detention in court), and by effectively locking people up permanently without charge or recourse, a culture of torture was easy to create. In my humble opinion, the root cause of all these issues was the suspension of habeas corpus in the first place.

While it’s correct that the US Government doesn’t have global jurisdiction it often acts that way. People are held outside of US jurisdiction, and the claim is that outside of it, the government doesn’t need to follow the Constitution. But – while claiming exemption from the law due to lack of jurisdiction, the government still exercises jurisdictional authority by imprisoning these people in the first place.

In short, the government exercises jurisdictional power while, at the same time, claiming an exemption due to lack of jurisdiction. As always, wanting it both ways.

More importantly, though, the Constitution doesn’t mention any location or jurisdiction. It doesn’t apply to foreigners. In fact, it doesn’t apply to people at all!

It applies to the Federal Government – only.

Clearly, this wasn’t a popular position with the right in 2007, and I received the usual attacks of being a “liberal.” But, supporting a violation of the Constitution because you agree with the politician in power is not a good choice.

Why? Because you’ve just given the opposition that same power. To those of you who supported expansions of federal power while Bush was in office – are you happy now that Obama is in charge with all that new power?

Torture, restricting habeas corpus, terrorist/DHS watch lists, free speech zones, and more…The Constitution isn’t partisan. It’s something to be followed no matter who’s in power, and no matter what they’re trying to scare you with.

Thomas Jefferson may have put it best:

“I never submitted the whole system of my opinions to the creed of any party of men whatever, in religion, in philosophy, in politics or in anything else, where I was capable of thinking for myself. Such an addiction is the last degradation of a free and moral agent. If I could not go to Heaven but with a party, I would not go there at all.”

By the way, Judge Napolitano’s new book Dred Scott’s Revenge, which covers much of the awful legal history of racism in America, is an amazing read.

13 thoughts on “Torture, Habeas Corpus and the Constitution”

The constitution applies to American Citizens not to Foreign terrorists caught on a battlefield with out uniforms.
Perhaps they should just be shot after an intensive interrogation to find out what they know then they wont be released at some future date into our cities of America

Sandy, mind pointing out where exactly the Constitution claims that it applies to anyone (citizens or not) other than the federal government? Where did you learn such a thing, public schooling or something?

Just to remind you – again – the constitution applies to the federal government. no one else. get it?

If you base your entire argument off a wildly false assumption like that, the whole thing is going to be off base.

While I do agree that the US constitution is a bargain struck between the citizens and the Federal Government and therefore doesn’t apply to foreigners, we should provide some kind of process for detaining combatants. This process should be uniform but does not require the legal protections afforded to we the citizens.

That being said, I can prove the term “torture” as used is a meaningless throw away term. If I should say to you: “accept 5 minutes of waterboarding or 5 years at hard labor” which of you would gladly accept this “torture”?

Real torture generally involves the removal of body parts by the the most painfully slow process imaginable and normally is concluded by the death of the victim; waterboarding is a ride in an amusement park by comparison.

The real question is this – does a person’s rights come from, as the founders said so clearly, their creator, or from the US government? Those of you who believe that rights can be infringed by the US government, whether you believe it or not, are advocating the latter.

That’s not what the founding fathers created. In fact, it’s the exact opposite.

I beleive that it may be poetic and even emotionally useful to believe that our individual rights descend from our creator.

Thats not how it occurs in practice. Our collectively defined rights (we cannot hope to assert them individually) come only from our collective ability to defend what we classify and agree upon as our individual “rights”

Rights are only those things for which we will fight and risk death to preserve. Of course if the risk of death is almost a certainty it would be foolish to attempt to defend such rights – there are no rights in a grave. There need to be some hope of success.

“From the creator” – is just following what the founding fathers believed…..and how they set up the constitution which was ratified by the people in the state conventions.

Now if you disagree with the founders, that’s a different argument. I happen to agree with them.

And, unless the constitution is changed, that’s how this government should be operating.

I’m also not a fan of socialism – neither is this site in general. So “collectivism” whether through rights (like you’ve mentioned) or ownership, aren’t something that’s much in line with either the Tenth Amendment Center or the Constitution.

Clearly rights apply only within the tribe, for example if Obama were to call in a tank strike force against some apartment complex in Texas in the hopes of killing a suspected federal firearms law violator and this, quite plausibly, would result in the immolation of scores of innocent children then one would say that Obama was a murderer and should be prosecuted for this capital crime. He isn’t about “our law” after all.

However if Obama sent in an airstrike against a building in a country we were at peace with in the hopes of killing a few terrorists and this in turn would quite plausibly result in the dismemberment and death of scores of innocent men women and children, this could be perfectly acceptable could it not?

So, Pat, are you saying that the Constitution doesn’t apply anymore – which would put you in the Obama and Bush camps – or, maybe you just don’t like the constitution and its clearly-defined restrictions?